Libinakis and Secretary, Department of Family and Community Services

[2004] AATA 1245

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1245

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2004/457

GENERAL ADMINISTRATIVE  DIVISION		)
Re		AGAPI LIBINAKIS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr. John Handley, Senior Member

Date26 November 2004

PlaceMelbourne

Decision The decision under review is affirmed.

(Sgd)  John Handley

Senior Member

SOCIAL SECURITY – whether claim for Newstart Allowance can be deemed to be a claim for Partner Allowance – eligibility for Partner Allowance when partner not receiving a benefit within s771 of Social Security Act 1991 – abolition of Partner Allowance by amendments to legislation – applicant did not ever qualify for Partner Allowance prior to abolition – duty of Centrelink officers – no power within AAT Act to review conduct of Centrelink officers – decision affirmed

Family and Community Services Legislation Amendment (Australians Working Together and other 2001 Budget Measures) Act 2003

Social Security Act 1991 (Cth) s771

Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003

Social Security (Administration) Act 1999 (Cth) s15(1)

REASONS FOR DECISION

26 November 2004 Mr. John Handley, Senior Member          

1.      The applicant applied to review a decision made by the Social Security Appeals Tribunal (“the SSAT”) on 29 March 2004.  The SSAT then decided to affirm a decision previously made by Centrelink where a claim for New Start Allowance (“Newstart”) was not treated as a claim for Partner Allowance (“PA”).

2. The application was listed for hearing on 23 November 2004. Throughout the appeal processes Mrs Libinakis was represented by her daughter Roksan Libinakis. On the day of hearing there was no appearance by Mrs Libinakis or her daughter. Ms Paul appeared on behalf of Centrelink. Telephone contact was made with Roksan Libinakis who indicated that it was not the intention of her mother to proceed with this appeal. However, after some discussion it was agreed – indeed it was the submission of Centrelink – that a review of the application be completed on the documents lodged upon the Tribunal file. I agreed with that suggestion. This decision has been made having regard to documents lodged by the respondent, being materials pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”); extracts from applicable legislation forwarded under cover of letter to Mrs Libinakis on 31 August 2004 and a Statement of Facts and Contentions with sundry attachments also forwarded to Mrs Libinakis on 10 November 2004.

3. The documents lodged by the respondent pursuant to s37 of the AAT Act contain a number of detailed letters completed by Roksan Libinakis which assist in providing background information.

4.      The application is complex and the consequences have been unfortunate.  A summary of the circumstances giving rise to the decision made by the SSAT is recorded as follows.

5.      On 24 April 2003 the Family and Community Services Legislation Amendment (Australians Working Together and other 2001 Budget Measures) Act 2003 (“the No. 1 Act”) received the Royal Assent. That Act amended (for the purposes of this application) s771 of the Social Security Act 1991 (“the Social Security Act”).  For the purposes of this appeal that section provided that a person shall not be granted a Partner Allowance unless the claim for that allowance was lodged before 1 July 2003.

6. Section 771HA of the Social Security Act provides – relevantly – that a person is entitled to a Partner Allowance when that person’s partner is receiving Age Pension.

7.      On 19 May 2003 Mrs Libinakis attended the Oakleigh Office of Centrelink and made enquiry as to her husband’s eligibility for Age Pension.  Mr Libinakis was then in full time employment and was 64 years of age.  He did not achieve his 65^th birthday until 14 September 2003.  The documents indicate that the discussion with the Centrelink officer on 19 May 2003 was concerned with her husband’s eligibility only after 14 September 2003 and an advice that it was current government policy to encourage persons to continue to work beyond the age of 65.  It was apparently suggested that Mrs Libinakis and her husband should attend a Centrelink office approximately two weeks prior to the anticipated date of retirement where claim forms for Age Pension and a claim form for Partner allowance could be obtained.  At 19 May 2003 Mrs Libinakis was herself in part time employment as an Aged Carer but her health was deteriorating.

8.      On 14 September 2003 Mr Libinakis achieved 65 years but he did not retire.  He continued to remain in employment with Davey Products Pty Ltd with whom he had been in continuous employment since 19 June 1978.

9.      On 24 October 2003 Mrs Libinakis attended the Oakleigh office of Centrelink.  She was then 56 years of age.  It would appear that she had then ceased employment because on 30 October 2003 Centrelink confirmed that a claim for Newstart Allowance had been made.  Ultimately Mrs Libinakis qualified for that benefit.

10.     On the same day that Mrs Libinakis received confirmation of her claim for Newstart (30 October 2003) Mr Libinakis completed a claim for Age Pension.  Perhaps on that day it was not known that the claim for Newstart had been approved or it had been overlooked that Mrs Libinakis had made that claim because question 8 of the application by Mr Libinakis for Age Pension denies that his “partner” (Mrs Libinakis) had claimed a social security payment in the previous 10 years.

11.     I should indicate also at this stage that the date of claim by Mr Libinakis for Age Pension is inconsistent with the certificate completed by his employer which records that the date that he last worked was 16 January 2004.

12.     Between 30 October 2003 and 10 November 2003 it would appear that a request was made by Mrs Libinakis for payment of Partner Allowance but this was refused.  I cannot interpret from the documents lodged whether that request was made in writing but it would appear that the decision made to find that there was no eligibility for Partner Allowance was made on 6 November 2003.  On 10 November 2003 Roksan Libinakis completed a detailed letter to the Oakleigh office of Centrelink requesting referral to an Authorised Review Officer (“ARO”).  On 28 November 2003 an ARO decided that there was no evidence that a claim for Partner Allowance had ever been made and in those circumstances a decision had not been made rejecting entitlement.  It therefore followed that there was no decision capable of being reviewed (I should also indicate at this stage that that response is inconsistent with the notation found in the referral to the ARO found at T15, page 51 of the T-documents which records the date of decision for “non eligibility to PTA” was 6 November 2003.

13.     On 5 December 2003 the Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003 (“the No. 2 Act”) again amended s771 by deleting the date “1 July 2003” and substituting the date “20 September 2003”.  That legislation received its assent on 5 December 2003.

14. In the Second Reading Speech to the Senate and in an explanatory memorandum when the No. 2 Act was introduced, the Minister said “The technical amendments made by this Schedule are to correct misnumbering and otherwise misdescribed amendments that resulted from the delayed passage of the (No. 1 Act)”.

conclusion and reasons for decision

15. At 19 May 2003 the applicant did not then have any entitlement to Partner Allowance. Mr Libinakis did not qualify for any benefit as described within s771HA. The Act which amended the Social Security Act to insert 1 July 2003 into s771 received its assent on 24 April 2003. The relevance of that date would have been known to Centrelink officers at 19 May 2003 when Mrs Libinakis made her enquiry but her husband had not then retired and he could not become eligible for Age Pension before 14 September 2003. It would not appear that he would have qualified for any benefit within the description of benefits at s771HA between 19 May and 1 July 2003 so as to give her an entitlement to Partner Allowance.

16. On 30 October 2003 Mrs Libinakis claimed Newstart being the same date her husband claimed Age Pension. At that date the No. 2 Act had not received its Assent but Centrelink was aware that the No. 2 Act intended to amend s771 because the form completed by a Centrelink officer on 14 November 2003 (being approximately three weeks before the No. 2 Act received its assent) records that there was a complaint then made by Mrs Libinakis that she had not been advised of eligibility for Partner Allowance prior to 20 September 2003. That date, in my view, does not appear as coincidence but appears for the reasons given above. At 20 September 2003 Mr Libinakis was employed and did not have any entitlement to a benefit. He had not then retired and subject to the assets test he would not have qualified for Age Pension. Mrs Libinakis could only have qualified for Partner Allowance if, immediately prior to 20 September 2003, her husband was receiving a benefit of the type described in s771HA.

17.     A significant focus in this application was made by Roksan Libinakis on the duty that she asserted Centrelink owed to her mother to advise her of her entitlements.  It was asserted that information should have been provided concerning the date from which a person claiming Partner Allowance would no longer be eligible and, in the absence of that advice, her mother suffered detriment.

18.     An extract from the Centrelink Guide to Social Security Law details the “Policy to Invite Claims or Volunteer Information” and is found within the T-documents at page 89.  It records that upon advice from the Attorney-General’s Department, officers have no duty to volunteer information in relation to social security entitlements.

19.     There are two principle dates at which time Mrs Libinakis would have, or could have, been advised.

20. At 19 May 2003 when she first approached the Oakleigh office of Centrelink, the Act No. 1 had received its assent (on 24 April 2003) and it then provided that eligibility for Partner Allowance would only exist if a claim had been made for it before 1 July 2003. It can in my view be reasonably assumed that the Centrelink officers would have known of that date on 19 May 2003. I am unable to say, on the material read, if information was then provided concerning disqualification from entitlement after 1 July 2003. I could in any event readily assume that whether it was, or it was not, it would have had little significance, then, to Mrs Libinakis because at 1 July 2003 her husband would have either been in employment or would not then have been eligible for a social security benefit thereby giving her entitlement to Partner Allowance under s771HA.

21. The next contact by Mrs Libinakis with Centrelink was on 24 October 2003. At that date the amendment by the No. 2 Act had not received its assent. Relevantly the date of 1 July 2003 continued to be the cut-off date from eligibility. On that basis any discussion concerning eligibility would probably have been irrelevant because the applicable date under the No. 1 Act had well and truly passed. The No. 2 Act received its assent on 5 December 2003 amending s771 by imposing a cut-off date of 20 September 2003. Even if there was an eligibility for pension granted to Mr Libinakis following his application for Age Pension on 30 October 2003, at all times prior to 5 December 2003 Mrs Libinakis would have fallen short of the No. 1 Act which had the cut-off date of 1 July 2003. If Mr Libinakis qualified after 30 October 2003, and prior to 5 December 2003, Mrs Libinakis could not have qualified under the amendments of the No. 2 Act because that imposed a cut-off date of 20 September 2003.

22. There was no contact by Mrs Libinakis with Centrelink between 19 May 2003 and 24 October 2003. I can find nothing in the legislation or the policy manual which imposes any duty on Centrelink to have notified her of proposed amendments. In any event if those amendments had any application to her they would only apply in so far as her husband achieved an eligibility for a pension or benefit under s771HA.

23. In conclusion I can find nothing at 19 May 2003 which would allow a conclusion that Centrelink officers knew at that date that the No. 1 Act would be amended and the date of 20 September 2003 would be imposed as the cut-off date under s771. The first knowledge that can be implied of Centrelink officers being aware that there was likely to be an amendment to s771 was on 14 November 2003 when the ARO referral was completed and where the date of 20 September 2003 is recited (T15, page 51).

24.     This Tribunal has no power or jurisdiction to review the conduct of Centrelink officers.  The above events however unfortunate and unusual do not permit me to make any finding that there was any eligibility relevantly at any time.

25. The provisions of s15(1) of the Social Security (Administration) Act 1999 only permit the deeming of a claim if the benefit claimed was incorrect or inappropriate and if a person subsequently makes a claim for a social security payment for which the person is qualified.

26.     In the present case a claim for Partner Allowance was not ever made (subsequently or at all) and Mrs Libinakis did not ever qualify for it.  I cannot in these circumstances deem that the claim for Newstart was in fact a claim for Partner Allowance.

27.     In the circumstances the decision under review is affirmed.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr. John Handley, Senior Member

Signed:         Holly Weston
  Associate

Date of Hearing  23 November 2004
Date of Decision  26 November 2004
Solicitor for the Applicant          Applicant represented by Roksan Libinakis
Departmental Advocate            Ms K Paul